☢ test - Í

Kaiser v. State, 275 Ga.App. 684, 621 S.E.2d 802 (September 30, 2005). “[Defendant], a physician, pled guilty to more than 60 counts of the unauthorized manufacture, possession, and dispensation of controlled substances.” The negotiated sentence prohibited him from practicing medicine during the term of probation; the trial court amended the sentence to prohibit defendant from “ever” practicing medicine again in Georgia or any contiguous state. Held, the trial court’s attempt to stop defendant from “ever” practicing medicine again was an “indeterminate” sentence. “Under OCGA § 17- 10-1(a)(1), the sentencing judge ‘shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime.’ We have held that, under this Code section, ‘[t]he conditions of probation cannot exceed the length of the sentence.’ Ballenger v. State, 210 Ga.App. 627, 629(3) (436 S.E.2d 793) (1993). The challenged condition in this case, which bars Kaiser from ever practicing medicine, violates that precept. Kaiser’s sentence is therefore void and must be vacated. See State v. Hart, 263 Ga.App. 8, 10 (587 S.E.2d 164) (2003).” Payne v. State, 273 Ga.App. 483, 615 S.E.2d 564 (May 31, 2005). Trial court could impose probation condition requiring drug/alcohol counseling even though offense didn’t involve drug or alcohol use. “We find that the challenged condition seeks to prevent excessive and unlawful drug and alcohol use by Payne during the period of probation, and as such is reasonably related to the appropriate sentencing objective of preventing Payne's involvement in criminal activity during the probationary period.” “‘A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.’ [Cit.] ... Whether ... the condition of probation amounts to an abuse of discretion depends upon whether it is ‘related to a legitimate purpose underlying the criminal justice system ... [or whether defendant’s] loss of rights relates in a rational way to the purpose underlying the sentencing objective, to prevent his involvement in criminal activity by monitoring his conduct while he serves the probationary part of his sentence. [Cit.] (Emphasis in original; punctuation omitted.)’ Tuttle v. State, 215 Ga.App. 396, 397(2) (450 S.E.2d 863) (1994).” Hill v. State, 270 Ga.App. 114, 605 S.E.2d 831 (October 19, 2004). Any condition of probation, such as, here, reporting to probation officer, can be designated a special condition of probation pursuant to OCGA § 42-8-34.1(a), even if it is also a general condition of probation. Under that subsection, the term “special condition of probation… now means ‘a condition of a probated or suspended sentence which: (1) Is expressly imposed as part of the sentence in addition to general conditions of probation and court ordered fines and fees; and (2) Is identified in writing in the sentence as a condition the violation of which authorizes the court to revoke the probation or suspension and require the defendant to serve up to the balance of the sentence in confinement.” On defendant’s sentence, “the words ‘special conditions’ are stamped beside the titles ‘general conditions of probation’ and ‘other conditions of probation,’ indicating the court’s intent that all conditions of probation be considered special conditions under Georgia law. At the top of the sentencing form appears the following stamped notification: ‘Any violation of these special conditions may result in the revocation of the entire balance of probation and may require the defendant to serve up to the balance of the sentence in confinement.’” Court thus could revoke more than two years of the balance upon defendant’s failure to report. Distinguished, Gamble (March 4, 2008), above. Talley v. State, 269 Ga.App. 712, 605 S.E.2d 108 (September 23, 2004). “Talley contends the trial court erred in imposing as a condition of probation that he have no contact with his ex-wives (the similar transaction witnesses) or ‘their immediate family members,’ whether ‘personal, by telephone, mail, or otherwise’; he claims that this condition deprives him of his right to contact his children, who are the ‘immediate family members’ of the similar transaction witnesses. We find no error. ‘[T]he conditions of probation are not imposed involuntarily, but are accepted by convicted criminals as a condition necessary to avoid incarceration in the penitentiary. Whether the waiver of rights required under the condition of probation amounts to an abuse of discretion depends upon whether it is related to a legitimate purpose underlying the criminal justice system or whether defendant's loss of rights relates in a rational way to the purpose underlying the sentencing objective, to prevent his involvement in criminal activity by monitoring his conduct while he serves the probationary part of his sentence.’ (Citation and punctuation omitted.) Goode v. Nobles, 271 Ga. 30, 31-32 (518 S.E.2d 122) (1999). Here, … the record shows that, like the incident for which he was convicted, Talley repeatedly utilized threats to kill his children in order to manipulate and abuse his ex-wives. At sentencing, the State expressed concern that, during any probationary period, Talley would retaliate against his ex-wives for testifying against him. The trial court expressly noted that Talley evidenced ‘no glimmer of understanding, no inkling of remorse’ for his acts against the victim or his ex-wives. Under these circumstances we find the contested condition of probation ‘is related to a legitimate purpose underlying the criminal justice system,’ and as such, the imposition of this condition does not demonstrate an abuse of the trial court’s discretion. Tuttle v. State, 215 Ga.App. 396, 397(2) (450 S.E.2d 863) (1994).”